Copyright (c) 2000 First Things 106 (October 2000).
After several sleepy and unimportant terms, the Supreme Court this year reminded us of its importance—excessive importance, some will say. It handed down a series of blockbuster decisions affecting American life in profound ways. With a few important (and expected) exceptions—notably the partial–birth abortion case and a silly but destructive football prayer decision—the term was cause for celebration. Federalism was strengthened by invalidation of the Violence Against Women Act, freedom of religion and choice in education were advanced by Mitchell v. Helms, freedom of association was protected in the Boy Scouts decision, parental rights won their most important victory in decades, and the limits on lawmaking by administrative agency were reaffirmed in the tobacco case. All in all, the Supreme Court term strengthened the independence and vitality of civil society and fostered the decentralization of government power.
But the term was also a little scary. To be sure, most of the important cases came out the right way. But the Four Dissenters (David Souter, Stephen Breyer, Ruth Bader Ginsburg, and John Paul Stevens) made it clear that they will not budge an inch, on any issue, no matter what. Their extremist rhetoric, in contrast to the cool, almost boring prose of most of the conservative majority, proclaimed their intention to make big changes if only they can get another vote. The Court hangs by a thread.
In the next few years, in all likelihood, three Justices will retire. That might not matter so much if decisions were squarely based on the law—on text, history, practice, and precedent. But in the partisan atmosphere of today’s Supreme Court, decisions are based on the Rule of Five—five votes win—and not much more than that. In many cases, there is barely a veneer of collegiality or deliberation. Rarely in history have the divisions on the Court been so raw.
For example, in Kimel v. Board of Regents, the Court held for the fifth time that Congress cannot override state sovereign immunity. Justice Stevens, who dissented in the earlier cases, joined by the rest of the Four, called the principle underlying these decisions “so profoundly mistaken and so fundamentally inconsistent with the Framers’ conception of our constitutional order that it has forsaken any claim to the usual deference or respect owed to decisions of this Court.” (This from a Justice who insists that Roe v. Wade must be followed in every detail.) The majority responded that the Dissenters’ refusal to follow precedents when they disagree with them “makes it difficult to engage in additional meaningful debate.” To the rest of us, it means that constitutional law is determined not by authority and argument, but by raw voting power. Whoever appoints the next few Justices will determine the meaning of the Constitution in dozens of important areas.
Most of this term’s cases should not have been so hard, and the decisions should not have been so close. Take Boy Scouts of America v. Dale, in which the Court held it unconstitutional for a state court to force the Boy Scouts to appoint openly homosexual scoutmasters. It is fundamental to a free society that private citizens must be able to form groups to espouse their moral views and choose leaders accordingly. No one has the civil right to assume leadership of an organization when he does not agree with the organization’s message. That should have been uncontroversial. The notion that every private group must be open to every person, without “discrimination,” means that every group must be alike. That would be the death knell of genuine diversity.
It would be comforting to think that even supporters of gay rights would recognize the importance of this principle. It used to be a commonplace that freedom must be protected even for those with whom we disagree. Yet not one of the Four Dissenters saw it that way.
Justice Stevens’ dissenting opinion for the Four was the most strident of the term. “Like equally atavistic opinions about racial groups,” he wrote, the opinion that homosexual conduct is immoral is “nourished by sectarian doctrine.” The harm created by this “prejudice” would be “aggravated by creation of a constitutional shield for a policy that is itself the product of a habitual way of thinking about strangers.” Translation: if we think your opinions are “atavistic” or “prejudiced,” or the product of “sectarian doctrine,” you forfeit your First Amendment rights. Is there a civil libertarian in the house?
Once upon a time, liberals were in the forefront of protecting the freedom to dissent from the orthodoxies of the majority. That is the purpose of a “constitutional shield.” I like to think that Justice William Brennan (to name one honorable example) would have replied that it is utterly irrelevant whether the Justices think the Boy Scouts’ views are right or wrong. The issue was whether there is a right of freedom of association—for everyone. It is a sad day when the so–called “liberals” on the Court bloc vote against civil liberties when the dissenter is a group they deem “atavistic.”
It is even more frightening to contemplate the possibility that Justice Stevens’ opinion may have been drafted as a majority. There is considerable evidence that was the case. It is customary for each Justice to be assigned at least one majority opinion from each sitting, and highly unusual for one Justice to write two majorities in major cases from a single sitting. Yet Justice Stevens produced no majority opinion for the April sitting, and Chief Justice William Rehnquist wrote the majority for two. Moreover, with its lengthy recitation of the facts, sparse citations to the majority, and comprehensive analytical structure, Justice Stevens’ opinion has the outward appearance of a majority opinion. Could it be that someone (Justice Anthony Kennedy?) flipped his vote at the last minute, turning Chief Justice Rehnquist’s dissent into a majority?
Mitchell v. Helms, the school aid case, presents a less somber picture. Although Justice Souter wrote an interminable (forty–nine page, thirty–two footnote) dissent, Justice Breyer broke from the Four to cast the sixth vote to uphold a program of assistance to nonpublic schools. In a gutsy, powerful, plurality opinion, Justice Clarence Thomas cut through the “vast, perplexing desert” of fine lines and distinctions that have plagued this area of the law, and announced a simple and logical rule: the government must be neutral toward religion and religious institutions. Most notably, he condemned the line of decisions that held that so–called “pervasively sectarian” institutions are ineligible to participate in public programs. He pointed out the “shameful pedigree” of this term in anti–Catholic bigotry and the “offensiveness” of “trolling through” the religious beliefs of institutions to determine whether they “take their religion [too] seriously.” (What a contrast to Justice Stevens’ notion that moral judgments based on “sectarian doctrine” are undeserving of constitutional respect.) He held that “the religious nature of the recipient should not matter to the constitutional analysis, so long as the recipient adequately furthers the government’s secular purpose.” Just so.
Justice Sandra Day O’Connor’s concurrence, joined by Justice Breyer (his first break with the Four Dissenters on any case of significance), was more cautious and less clear. But even these two “moderates” made major steps toward a sensible Establishment Clause jurisprudence, stripped of the old hostility to religion (and especially to Catholic institutions). Moreover, Justice O’Connor strongly implied that a “true private–choice program” would be permissible. That is good news for school choice advocates.
The question remains whether any of these decisions really matter. Usually, constitutional law builds like the sediment at the bottom of a lake, with each layer affecting but not dictating the shape of the next. In the almost thirty years since “conservatives” have presumably controlled the Court, they have overruled only a handful of significant precedents, and usually only after they had been thoroughly undermined by the course of decision making. That respect for the past reasserted itself this term in the surprising 7–2 reaffirmation of the benighted Miranda decision, and it played a part in the partial–birth abortion case.
The Four Dissenters apparently are prepared to sweep aside the unwelcome decisions of the past, if only they can get the votes. To an extent rarely seen in the history of the nation, the content and meaning of the Constitution appear to be up for a vote in the next presidential election.
Michael W. McConnell is Presidential Professor at the University of Utah College of Law. Professor McConnell represented the petitioners in Mitchell v. Helms and Boy Scouts of America v. Dale, and argued Mitchell.